I’m going to try something unusual in this newsletter. Normally, when I write about law, I try to take complex legal proceedings and describe them as clearly and as simply as possible. I try to bring clarity out of confusion. Today, my goal is simple—to confuse you as much as I’m confused.
On Monday morning, I thought we had clarity. For pro-life advocates, the news from the Supreme Court was bad. Chief Justice John Roberts had reversed himself, voting to strike down a law nearly identical to a law he voted to uphold just four years before, and dealing the pro-life cause yet another blow at the hands of yet another Republican-appointed justice.
In June Medical Services v. Russo, five justices of the court voted together to strike down a Louisiana law that required abortion doctors to obtain admitting privileges at a hospital located within 30 miles of the abortion provider. This judgment reaffirmed Whole Women’s Health v. Hellerstedt, a case where five justices of the court joined to strike down a Texas law that likewise required abortion doctors to obtain admitting privileges at a hospital located within 30 miles of the abortion provider.
Why is it remotely remarkable SCOTUS reaffirmed an abortion precedent that was only four years old? Because the court had changed considerably since 2016. The vote in Whole Women’s Health was 5-3. Justice Antonin Scalia had recently died, and Justice Anthony Kennedy joined with the four Democratic appointees. Justice Roberts voted in dissent. He would have upheld the admitting privileges law.